Twin Genre Mistakes about Philippine Constitutional Democracy

The conventional account of Philippine democracy’s founding and its written constitution both suffer from a genre mistake. In this account, the 1986 Revolution ushered back the freedoms lost during the Marcos dictatorship; hence the only freedoms restored in 1986 were the same ones that maintained the oppressive and corrupt rule of a narrow oligarchy which the dictatorship had temporarily displaced. I argue, based on a history 'from below', that the Philippine founding was not a mere democratic restoration, but was instead a democratic revolution: the protagonists of 1986 sought to usher in new individuals and groups onto public decisionmaking bodies which heretofore systematically excluded them. For this purpose they inscribed onto the 1987 Constitution a political infrastructure of democratic pluralism by giving individuals and groups various formal and informal channels for directly participating in policymaking.

India's Transformative Constitution

We think of Indian Independence as a moment of political transformation from the erstwhile colonial regime to a democratic and republican government. The Indian Constitution is meant to embody this moment of transformation. However, the Constitution was meant to go much further than simply set out the blueprint for a political transition, or a mere transfer of power: it was intended to facilitate a thoroughgoing transformation of society itself, through the trinity of “liberty, equality, and fraternity”, and democratise hierarchical relations in the “private sphere”, such as those of caste, gender, and the economy. This paper will discuss how close attention to the radical social movements that led up the framing of the Constitution, along with the Constituent Assembly Debates, reflects the democratic radical and transformative character of the Constitution, a character that has more often than not been obscured by subsequent scholarship as well as by judicial decisions.

Constitutional Structure of Super Laws

My research contribution would be an argument for a third tier of constitutional ‘material’. We are used to thinking about constitutional systems in terms of two levels of norms. I will argue that a three level constitutional system is needed and also should be desired. In a codified constitutional system I propose an intermediate norm called ‘super laws’ (which is quasi-constitutional) beneath the Constitution and above regular laws. Furthermore, in an uncodified constitutional system I will argue why we should recognize the higher lawmaking norm to be equal to this same ‘intermediate’ level norm, with respect to its form and effect.
Scholars have proposed a general normative hierarchy between the Constitution, super-statutes and ordinary laws. However, until now the literature did not address the ex-ante way in which the intermediate level of higher lawmaking statute can be created.

Free Speech, Trust in Institutions and the Proof of Fake News in Singapore

In 2019, Singapore joined a growing number of countries in passing laws to regulate online falsehoods, or “fake news”. The law, stated to uphold the public’s “trust in institutions”, empowers ministers to issue correction orders against statements they deem false, which may be appealed to the courts. But since Singapore’s official records are rarely open access, a question arises: who bears the burden of proof in appeals? In two such appeals, Singapore’s courts reached conflicting conclusions on the issue, reflecting two theories of free speech and public trust arising from parliamentary and public discourses. First, speech to determine technical “truths”, with public trust being a prerequisite for orderly discussion. Second, speech to uphold democratic accountability, with public trust being a product of political dialogue. This paper explores competing legal and political narratives of speech and trust in Singapore, and suggests how courts may reconcile them in fake news litigation.